A Primer On OSHA'S Final Ergonomics Program Standard

Background

On November 14, 2000, the Occupational Safety and Health Administration (OSHA) published its "Ergonomics Program, Final Rule" in the Federal Register.   OSHA´s proposed ergonomics standard is focused on reducing work-related musculoskeletal disorders (MSD´s), which OSHA claims are caused by a mismatch between a worker´s physical capabilities and the physical duties of the job.  

The final ergonomics standard is effective January 16, 2001, although already pending lawsuits filed by various business associations are attempting to delay that date.   Moreover, OSHA has been unsuccessful in obtaining adequate funding for implementation and enforcement of its rule, although President Clinton is determined to change that before leaving office in January.   Funding will be a significant issue, as one of the most significant changes from the November, 1999 proposed standard is the broadened scope of coverage:   the final rule covers all general industry (rather than trying to focus only on manufacturing and manual handling jobs), with exceptions only noted in the construction, agriculture, maritime and railroad industries.

The following provides an overview of the final ergonomics program standard.   OSHA´s web site (www.osha.gov) and related publications, as well as the ergonomics standard itself (29 CFR Part 1910, Subpart W, as published in the Federal Register, November 14, 2000, 65:68261-68870), were the sources for most of the information contained in this article.

Which Employers Will Be Affected?

The final standard applies to all employers in general industry covered by the Occupational Safety and Health Act.   For those states which have their own OSH plans, the final ergonomics standard requires them to adopt a "comparable standard" within six months of November 14, 2000.   The states with federally-approved programs currently include Alaska, Arizona, California, Connecticut (state and local government employees only), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York (state and local government employees only), North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming.

Excluded From the Final Rule

NOT COVERED by the ergonomics standard are jobs covered by OSHA´s standards in the agriculture, construction and maritime industries.   The November 14, 2000 final rule expanded the exclusion to include railroad operations and employment directly related to the operation of a railroad (administrative support services and office management).  

What Are The Immediate Effects Of The Standard?

By 11 months after the date of publication, or no later than October 14, 2001, an employer is required to take several initial steps which involve dissemination of information to employees.   As outlined in subsection (d) of the standard, every current and new employee (within 14 days of hiring) must receive basic information about:

§                 Common musculoskeletal disorders (MSD´s) and their signs and symptoms

§                 The importance of reporting MSD´s and their signs and symptoms early, and the consequence of failing to report them early

§                 How to report MSD´s and their signs and symptoms in the workplace

§                 The kinds of risk factors, jobs and work activities associated with MSD hazards

§                 A short description of the requirements of OSHA´s ergonomics program standard

This basic information is outlined in Appendix A to the final rule.   In addition, an employer must make available to employees a summary of the standard´s requirements.   Appendix B to the final rule provides a summary for this purpose.   (See www.osha-slc.gov/ergonomics-standard/regulatory/index.html for review of the Appendices).  

The information must be provided in written form, or in electronic form only if all employees have electronic access.   The information also must be posted in a conspicuous place in the workplace, as is similarly required for other labor law posters.  

Relevant Definitions

A musculoskeletal disorder (MSD) is broadly defined by OSHA to include injuries or disorders of the muscles, tendons, nerves, ligaments, joints, cartilage and spinal discs (e.g. carpal tunnel syndrome, tendinitis, low back pain), including herniated discs.   The final rule also adds disorders of blood vessels as another category of MSD´s.   Body parts implicated by MSD´s are the neck, shoulder, elbow, forearm, wrist, hand, abdomen (hernia), back, knee, ankle and foot.  

Specific conditions which OSHA identifies as examples of MSD´s include:   muscle strains and tears, ligament sprains, joint and tendon inflammation, pinched nerves, and spinal disc degeneration, as well as low back pain, tension neck syndrome, carpal tunnel syndrome, rotator cuff syndrome, DeQuervain´s syndrome, trigger finger, tarsal tunnel syndrome, sciatica, epicondylitis, tendinitis, Raynaud´s phenomenon, hand-arm vibration syndrome (HAVS), carpet layer´s knee, and herniated spinal disc.   The comprehensive nature of these definitions has the potential to implicate virtually every workplace and every employee.

OSHA´s standard specifically excludes from the definition of   MSD injuries resulting from a slip, trip, or fall, or acute accident such as a vehicle accident.  

Musculoskeletal disorder incidents (MSD´s) are the work-related MSD´s which trigger coverage of the ergonomics standard.   In order to qualify as a MSD incident, the following criteria must be satisfied:

(1)                           Work-related MSD, which requires that the workplace caused or contributed to an MSD or significantly aggravated a pre-existing MSD, AND the incident requires temporary removal from the job, restricted work or assignment to a light duty job, or medical treatment beyond first aid; OR

(2)                           Work-related MSD signs or MSD symptoms that last for 7 or more consecutive days after the employee reported them to the employer.

The definition of MSD incident substantially follows the definition of an OSHA-recordable injury.   MSD signs are defined to include decreased grip strength or range of motion, deformity or loss of muscle function, while   MSD symptoms are defined to include numbness, tingling, pain, burning, cramping, and stiffness.   Both require physical findings rather than mere subjective complaints of discomfort.

Employers make the initial decision as to whether the injury is work-related or not, and whether it meets the criteria of an MSD.   The employer may consult with a Health Care Professional (HCP) in making this determination.

When Must An Employer Implement An Ergonomics Program?

If an employee suffers from a work-related MSD incident, and the job routinely (one or more days a week) involves exposure to one or more of the risk factors identified in the "Basic Screening Tool" created by OSHA, an employer must either use a "Quick Fix" option, or develop and implement a full ergonomics program.   The standard requires employers to begin formally responding to employees´ reports of MSD incidents, signs and symptoms no later than October 14, 2001.

 What Is An "Ergonomics Program"?

OSHA has identified six elements necessary for an ergonomics program to satisfy the requirements of the final standard:

1.         Management Leadership

The management leadership element requires a process for managing the ergonomics program, assigning and delegating authority and resources, communicating with employees about the program and their concerns, and ensuring that the policies and practices do not discourage early reporting of MSD´s or participation in the ergonomics program.

2.           Employee Participation

As for employee participation, guidelines should be created and information distributed which explains to employees how they can participate in the development, implementation and evaluation of the ergonomics program.   Also, a mechanism must be created to allow for prompt reporting of MSD´s and MSD hazards, with prompt responses when employees make these reports.   Employers also must ensure access to information concerning the standard, and the programs created as a result.

3.         MSD Management

For employees suffering from work-related MSD´s, employers must promptly refer the employees to an appropriate Health Care Professional (HCP),   accommodate work restrictions or provide time off work to recover, provide benefits and wage loss replacement for up to 90 days (see further discussion below on work restriction protection and benefits), and perform an evaluation and follow-up of the MSD incident, all at no cost to the employee.

OSHA outlines various information which should be provided by the employer to the Health Care Professional (HCP) as part of the referral and evaluation:

§                 Job description

§                 Information about the physical work duties, risk factors and MSD hazards in the job

§                 A copy of the OSHA ergonomics standard

§                 A list of information that the medical professional´s opinion must contain (e.g. work restrictions)

A provision unchanged by the final rule, and very troubling to employers, is the prohibition on medical information unrelated to the MSD or MSD hazards.   Subsection (p) of the OSHA standard prohibits the HCP from providing a written opinion to the employer which contains medical information about the employee which is unrelated to "workplace exposure to risk factors."   An employer is required to instruct the HCP that this non-workplace information may not be communicated to the employer except when required by State or Federal law.   This is problematic for an employer in evaluating the relationship of the employee´s MSD incident and condition to the employer´s work activities, as opposed to the employee´s personal or other non-work activities.  

The Health Care Professional´s (HCP´s) opinion must contain several pieces of information, in written form:

§               Assessment of the employee´s medical condition, and its relationship to the job´s physical activities, risk factors and MSD hazards

§               Recommended work restrictions or time of work, and recommended follow-up

§               Written confirmation that the employee has been informed of the results of the evaluation, the instructions for recovery, and any medical conditions associated with the employee''s job

§               Written confirmation that the employee has been informed about work-related or other activities which could impede recovery from the injury

The rule also provides for a mechanism for the employee to obtain a second opinion on work restrictions or work removal, at the employer´s expense, as well as a process for resolving conflicts between opinions.

4.           Job Hazard Analysis

This is a proactive element of the program - employers must evaluate hazards by talking to employees in the same job as the employee who suffered the MSD to determine tasks related to MSD´s, and observe employees performing the job, to evaluate the "magnitude, frequency, and duration of exposure" to MSD risk factors.  

Appendix D-1 and Appendix D-2 to the standard discuss hazard identification tools, to assist with this process.   Utilization of a professional ergonomist also is appropriate for job hazard analysis, or any other "reasonable method" appropriate to the job and risk factors involved.

If the employer concludes that the MSD hazards are unique to the employee who reported the MSD, any modifications or controls may be limited to that single employee.

5.         Hazard Reduction and Control Measures

After hazards are identified, employers are required to control or reduce MSD hazards to an acceptable level, as defined by the standard.   If that is not possible, hazards should be reduced to the extent possible, and then reexamined every 3 years, with additional controls implemented as appropriate until the proper hazard reduction level is reached.  

The ergonomics standard identifies examples of hazard controls, using categories of engineering, work practice or administrative controls, with engineering controls preferred.   Personal Protective Equipment (PPE) may supplement these controls, but not replace them, unless no other controls are possible.   Any controls provided or implemented are at the employer´s cost.

In subsection (m) of the standard, OSHA outlines steps employer´s must take to reduce MSD hazards:

§                 Ask employees in problem jobs for recommendations on how to manage or control the hazards

§                 Identify, assess and implement feasible controls within 90 days of the initial MSD report

§                 Track progress of hazard control and seek feedback from employees

§                 Identify and evaluate new MSD hazards when equipment or processes are changed, designed or purchased

Evaluation is part of the hazard reduction element of an ergonomics program.   An employer must evaluate its ergonomics program at least every three years, or more often is the program is not functioning properly, by consulting and seeking feedback from employees, reviewing effectiveness of the program, confirming identification and control of MSD hazards, and evaluating outcomes or results of the program.  

6.         Employee training

If an MSD incident "triggers" the Quick-Fix program or implementation of the full ergonomics program, an employer must provide initial training   to each employee in a problem ("trigger") job, each of the employee´s supervisors or team leaders, and employees involved in the ergonomics program itself.   Training must be provided at least every 3 years.   The training must be interactive, and allow opportunity for questions and answers.

The specific requirements of training under OSHA´s ergonomics standard are found in subsection (t) of the final rule.

Employee Benefits Under The Standard

The final rule remains quite liberal in its medical care and wage replacement provisions, entitled "Work Restriction Protection" (WRP).   There is no waiting period for the commencement of WRP benefits, unlike the waiting period which exists for most states´ workers´ compensation benefits.   If the employee receives workers´ compensation payments, or payments from a program funded publicly or funded by the employer, or income from another job taken by the employee due to his or her work restrictions, these payments may be offset from any wage replacement benefits received under OSHA.   Similar to the Family Medical Leave Act (FMLA) provisions, however, an employer also may allow an employee to take paid leave, so long as it meets the minimum wage replacement and benefit standards set by OSHA´s standard.  

The benefits available under OSHA´s standard vary depending on whether the employee is restricted from or removed from working.   The WRP benefit under either scenario remains in place until the earliest of the following events:   (i) the employee is able to resume former work activities, (ii) a medical provider determines that the employee will never return to his or her former work activities, OR, (iii) 90 calendar days have passed since the first day of work restriction.

Restricted Work

If the employee is assigned restrictions or placed in a temporary light duty job as a result of an MSD, the employer must provide work restriction protection (WRP) by continuing the employee´s benefits and 100% of his or her earnings.   "Benefits" are defined to include seniority, insurance programs, retirement benefits and savings plans.

Removal From Work

If the employee is required to take time off from work due to the MSD incident, the required WRP benefit is 100% of the benefits but only 90% of   the employee´s earnings.  

Grandfather Clause

An employer with an existing written ergonomics program in place on November 14, 2000 may be grandfathered in under the new rule by demonstrating that its program meets the basic requirements of the OSHA ergonomics standard.   The existing elements required by OSHA to qualify for "grandfathering" include management leadership, employee participation, job hazard analysis and control, training of managers, supervisors and employees, and program evaluation.   The standard requires at least one review of the existing program´s effectiveness prior to January 16, 2001.  

Within one year of   the January 16, 2001, the effective date of the standard, an employer also must implement a program of MSD management, to maintain its program on "grandfather" status.

"Quick Fix" OPTION

If only a single MSD has occurred in a given job, and if no more than two MSD´s have been reported at the workplace in the 18 months preceding that single MSD, the employer may use OSHA´s "Quick Fix" Option, rather than implementing a the full ergonomics program.   This option may be used by an employer if the hazard can be corrected within 90 days.  

A "Quick Fix" program requires:

§                 MSD management for the employee

§                 Discussion with employees in the job about tasks relating to the MSD incident

§                 Observe and evaluate employees for MSD risk factors

§                 Seek input and recommendations from the employees to help reduce exposure to MSD hazards

§                 Implement hazard controls within 90 days

§                 Evaluate effectiveness of the controls within 30 days of their implementation

§                 Maintain records of the Quick Fix process for 3 years

If the "quick fix" is ineffective in reducing MSD hazards to acceptable levels, as defined by the standard, implementation of a full ergonomics program is required.

Does It Ever End?

An ergonomics program for any specific job may be discontinued if the MSD hazards have been reduced to acceptable levels, as defined by the standard´s "Basic Screening Tool."     The employer must continue to maintain controls and training related to those controls, even after hazards have been reduced.

[PLEASE NOTE: The information provided in this memo is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this memo.]